“I.R. Coelho (dead) by L.Rs. Vs. State of Tamil Nadu & Others”The Nine Judges' decision by Supreme Court

(The 9th Schedule Case)

'A Case Study' Lecture delivered at the 'Advocates Association' on 9th Feb., 2007 at 4.15 pm:

Organised by 'SAMVAAD'

****By Justice Sunil Ambwani,

Judge Allahabad High Court, Allahabad

1. The nine judges' Bench presided by Justice Y.K. Sabharwal, CJI

delivered a unanimous verdict on 11.1.2007 in I.R. Coelho (dead) by L.Rs.

Vs. State of Tamil Nadu and others, upholding the 'Basic Structure

Doctrine', and the authority of the judiciary to review any such laws, which

destroy or damage the basic structure as indicated in Art.21 read with Art.14,

Art.19 and the principles underlying thereunder, even if they have been put

in 9th Schedule after 14th April, 1973 (the date of the judgment in

Kesavananda Bharti's case). The judgment upholds the right of judicial

review and the supremacy of judiciary in interpreting the laws, which have

been constantly under threat. The judgment reiterates and defines the

exclusive right of the judiciary to interpret laws, in an ongoing struggle of

supremacy between legislative and judiciary since 26 th Nov. 1949, when the

Constitution was dedicated to the people of India.

Legislative History: Right to Property

2. The philosophy underlying our Constitution goes back to the historic

Objective Resolution of Pt. Jawahar Lal Nehru adopted by the Constituent

Assembly on January 22, 1947, which inspired the shaping of the

Constitution through all its subsequent stages: 'The guarantee and security to

all the people of India, justice, social, economic and political; equality of

status of opportunity, before the law; freedom of thought, expression, belief,

faith, worship, vocation, association and action, subject to law and public

morality was the objectives for drafting the Constitution.' The preamble

embodied these objectives. The socialistic pattern of society was visible in

the entire document. The word 'socialist' was, however, added to the

preamble by 42nd Amendment Act in 1976. The Prime Minister Smt.

Indira Gandhi explained:- “We have always said that we have our own

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brand of socialism. We will nationalise the sectors, where we feel the

necessity. Just nationalisation is not our type of socialism” (Statesman,

25.10.1976 P. 1 : 28.10.1976 P. 1).

3. The Constitution of 1949 had a threefold provision for safeguarding

the right of private property. It not only guaranteed the right of private

ownership but also right to enjoy and dispose of property free from

restrictions other than reasonable restrictions. Firstly, Art. 19 (1) (f)

guaranteed to every citizen the right to acquire any property by any lawful

means such as inheritance, personal earnings or otherwise, and to hold it as

his own and to dispose it freely, limited to such reasonable restrictions,

which may not be in excess of the requirement of the interest of the general

public. Secondly, Art.31 (1) guaranteed that no person shall be deprived of

his property saved by the authority of law. Any property seized without

proper legal authority was to be released at the intervention of the Court. A

subject could not be deprived of his property by an executive order. Thirdly

Art.31 (2) enjoined that if the State wants to acquire private property, it could

do so by acquisition or requisition for public purpose and by payment to the

owner by fixing the amount or specifying the principle upon it, it is to be

determined.

4. The development of the socialist order by the then government led

by Pt. Jawahar Lal Nehru was not possible without vast acquisition of land

and for reorganisation of agricultural holding. The right to property was a

serious threat to socialistic pattern of society. In Kameshwar Vs. State of

Bihar (1951) Patna High Court held the Bihar Land Reforms Act

unconstitutional. Allahabad and Nagpur upheld land reforms, against which

appeals were pending in Supreme Court. The Constitution was amended.

5. The first constitutional amendment in 1951 exceptions were added to

Art.31 (2) and Art.31-A – 31-C were inserted. The first amendment also

added in 9th Schedule to the Constitution with reference to Art.31-B

purportedly to save those legislations dealing with land reforms, which were

struck down by the Court. The amended Art.31-A provided that

notwithstanding anything contained in Art.13, no law providing for

acquisition by the State of any estate or any rights, taking over of the

management of any property by the State for a limited period either in public

interest, or to secure proper management of the property, amalgamation of

two corporations in public interest or to secure proper management of any of

the corporations, the extinguishment or modification of any rights of

managing agents, secretaries and treasurers etc. and extinguishment or

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modification of any rights by virtue of any agreement, lease or license for

searching, or winning, mineral or mineral oil or premature termination or

cancellation of such agreement, lease or license, shall be deemed to be void

on the ground that it is inconsistent with or takes away or approaches any of

the rights conferred by Art.14 or Art.19 of the Constitution of India. The

State law in this regard was to receive this status only after receiving assent

of the President.

6. Article 31-B validated certain acts and regulations if without

prejudice to the generality of the provision in Art.31-A they were put under

9th Schedule, and that the provisions thereof shall not be deemed to be void

on the ground that they are inconsistent with, or take away or abridge any of

the rights conferred by Part III of the Constitution. The amendment saved

the conflict of such legislations with fundamental rights.

7. In Shankari Prasad Singh Deo Vs. State of Bihar (1952),

Kochunni Vs. State of Madras (1960) and Sajjan Singh Vs. State of

Rajasthan (1965) the Supreme Court upheld the First Amendment and

further held that the law, which seeks to deprive a person of his property

must be a valid law, enacted by competent legislature and not in consistent

with any of the fundamental rights guaranteed by Part III of the Constitution.

The Supreme Court, however, noted that if the effect of the amendment made

in the Fundamental Rights on Art.226 is direct and not incidental, different

considerations may perhaps arise. Justice Mudholkar questioned, “it is

also a matter of consideration whether making a change in basic feature

of the Constitution can be regarded merely as an amendment or would it

be, in effect rewriting a part of the Constitution, and if the later, would it

be within the purview of Art.368.”

8. The brute majority of the Congress Government allowed it to amend

the Constitution 41 times, till the promulgation of the emergency. The 4 th,

5th and 25th and then 42nd amendment during the emergency in 1975 put the

laws of acquisition of the State or other intermediate interest in land beyond

scrutiny of fundamental rights, the directive principle of state policy or even

basic structure of the Constitution. Though the legislature was, until the 4 th

amendment, under constitutional obligation to pay compensation the

adequacy of which was not made questionable by the 4 th amendment (1955)

in Art.31 (2). In State of West Bengal Vs. Bela Banerji (1954), the

Supreme Court interpreted the word 'compensation' simplicitor as full

compensation i.e. market value of the property on the date of acquisition.

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The Government was not happy as it did not have adequate resources to pay

compensation for all the property, which was to be nationalised.

9. In R.C.Cooper Vs. Union of India (1970) (the Bank Nationalisation

Case) the Supreme Court held that the word 'compensation' implied full

monetary equivalent of the property taken away from the owner i.e. market

value on the date of acquisition.

10. In I.C. Golak Nath and Ors. Vs. State of Punjab (1967) a majority

of 6:5 overruled Shankari Prasad and Sajjan Singh holding that constitutional

amendment is law within the meaning of Art.30 and if it takes away or

abridges any rights conferred by part III, it is void. The judgment was made

prospective with effect from the date of decision (27th Feb. 1967).

11. I.C. Golak Nath resulted into 24th amendment (1971): adding Art.13

(4), that the article shall not apply to any amendment of the Constitution

under Art.368 and also amended Art.368 (1) by adding the word “in exercise

of its constituent powers”; 25th amendment (1971): amending Art.31 by

which the amount fixed for acquisition could not be challenged on the

ground of adequacy in Court and inserted Art.31 (c) declaring that law

securing any of the principle in part 4 shall not be deemed to be void if it

takes away the rights by Art.14 and Art.19, and no law containing such a

declaration will be questioned in Court; 26th amendment (1971): omitting

Art.291, (privy purses) and Art.362 (right and privileges of the rulers of the

Indian states) and inserted Art.363-A ceasing the recognition of rulers and

abolishing privy purses; and 29th amendment (1972): adding to Kerala

Amendment Act in 9th Schedule.

12. The 24th amendment (1971) made an attempt to supersede Golaknath

case putting the validity of constitutional amendment on the ground that it

takes away or affects fundamental right beyond the pail of judicial scrutiny.

This 24th amendment was challenged in Kesavananda Bharti case (1973)

before 13 judges. The majority by 7:6 overruled the 24 th amendment. The

validity of Clause 4 of Art. 13 was upheld. In the result the fundamental

rights could be amended under Art.368 and the validity cannot be questioned

on the ground that the act invades or encroaches fundamental rights. The

Supreme Court, however, by a judicial innovation structured a 'Basic

Structure Doctrine' and gave to itself power to review whether such an

amendment would be ultra vires as it violates very structure of the

Constitution. The Supreme Court without foreclosing the list of basic

structure found following to be life and blood of the Constitution:-

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“(a) Supremacy of the Constitution.(b) Rule of law.(c) The principle of Separation of Powers.(d) The objectives specified in the Preamble to the Constitution.(e) Judicial review; Arts.32 and 226.(f) Federalism.(g) Secularism.(h) The sovereign, democratic, republican structure.(i) Freedom and dignity of the individual.(j) Unity and integrity of the Nation.(k) The principle of equality, not every feature of equality, but the quintessence of equal justice.(l) The 'essence' of other Fundamental Rights in Part III. (m) The concept of social and economic justice-to build a welfare State; Part IV in toto.(n) The balance between Fundamental Rights and Directive Principles.(o) The Parliamentary system of government.(p) The principle of free and fair elections.(q) Limitations upon the amending power conferred by Art.368.(r) Independence of the Judiciary.(s) Effective access to justice.(t) Powers of the Supreme Court under Arts.32, 136, 141, 142.(u) Legislation seeking to nullify the awards made in exercise of the judicial power of the State by Arbitration Tribunals constituted under an Act.”

13. Applying basic feature doctrine the majority in Kesavananda Bharti

held that second part of Section 3 of the Constitution 25 th Amendment Act,

1971 was invalid in Art.31-C, which provided that no law containing a

declaration that it is for giving effect to such policy shall be called in

question in any Court on the ground that it does not give effect to such

policy.

14. The 25th Amendment 1971 substituted the word compensation in

Art.31 (2) with the word 'amount' but again the majority of the Supreme

Court reserved an area for judicial intervention in Kesavananda Bharti Vs.

State of Kerala (1973) with the majority of 6:5 that the amount fixed by

the legislature could not be arbitrary or illusory but must be determined by a

principle, which is relevant to the acquisition of the property.

15. The Indira Gandhi Government reacted sharply by putting specified

laws of acquisition of land beyond pail of Art.31 by engrafting exceptions in

Art.31-A – 31-D, which excluded the obligation to pay any amount as

compensation if such laws related to matters specified in the exceptional

provisions namely, law for acquisition by the State of any estate or other

intermediate interest in land to affect aggregarian reforms and to improve the

agricultural wealth of the country as well as social control of the means of

production. Art.31-A, except certain clauses of laws, Art. 31-B read with 9 th

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Schedule gave blanket cover to certain enactments, the number of which

swelled from 13 to 284 by the year 2000. Art.31-C inserted by 25 th

amendment (1971) provided that any law, which seeks to implement the

directive in Art. 39 (b) or 39 (c) with a view to plan the socialistic

distribution of wealth and the means of production was not to be void for any

inconsistency with Art.14 or 19. The decision in Keshavanand held that

judicial review is one of the essential feature of the Indian constitution,

which cannot be taken away by amendment under Art.368 and further held

that the immunity to any particular law to implement the directive in Art. 39

(c) is unconstitutional.

16. The 42nd amendment (1976) was introduced during the emergency,

amended as many as 56 Articles as well as 7th Schedule and changed the vital

principles underlying the 1949 Constitution, including an attempt to overrule

the judgment of this Court nullifying the election of Indira Gandhi enlarged

the scope of Art.31-C by including within its protection laws to implement

any of the directive principle in Part IV of the Constitution- not merely

Art.39 (b) and (c).

17. The 44th amendment (1978) by the Janta Government, tried to do

away with all the harm that was done to the Constitution by the 42nd

amendment, but gave a death blow to the right of property guaranteed of the

Constitution in 1948 in Art. 19 (1) (f) and 31. Art.19 (1) (f) was repealed and

Art.31 was taken out of Part III and made Art.300-A. Right of property was

no longer a fundamental right and was substituted as a constitutional right.

An individual's property could be taken away by a public official without

legal authority such a person would not be left with remedies under Art.32 as

Art.300-A is not a fundamental right. A person complaining of any law

taking away his right to property will have to look for his remedies under

Art.226 or by an ordinary suit. The same amendment omitted clause 2 (A)

(6), of Art.31 and Clause (2) of Art.31 and transferred its proviso to Art.30

as Clause (1) (A). The protection under Art.31 to the laws violating

fundamental rights remained to operate as an exception to Art.14 and 19.

Right to compensation to the actual tiller in Art.31 (A) (1), however, has

been retained, even though Art.31 was omitted.

18. The 42nd amendment tried to overreach the implication of

Kesavananda Bharti case and in order to upheld the sovereignty of

Parliament (as constituent body) in Clause (5) of Art.386 declared that

“there shall be no limitation” on the constituent power of the Parliament to

amend and such amendment, shall not be called in any Court on any ground

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(Clause 4). In Minerva Mills (1980) the Supreme Court by then armed with

basic structure doctrine declared Clause (4) and (5) of Art.368 to be invalid

on the ground that these clauses removed all limitations upon the power of

the Parliament to amend the Constitution and to destroy the right of judicial

review, which is “essential feature” or “basic structure” of the Constitution.

The order of reference

19. The Gudalur Janmam Estates (Abolition and Conversion into

Ryotwari) Act, 1969 (the Janmam Act) vested certain land including forest

land in the Janmam Estate in the State of Tamilnadu. The Act was struck

down in Balmadies Plantations Ltd. Vs. State of Tamilnadu, (1972) 2

SCC 133 because the acquisition of forest land was not found to be a

measure of agrarian reforms under Art.31 (A) of the Constitution. Similarly

Section 2 (c) of the West Bengal Land Holding Revenue Act, 1979 was

struck down as arbitrary and unconstitutional. The Special Leave Petition by

State of West Bengal was dismissed.

20. The 34th amendment and 66th amendment to the Constitution inserted

these two acts in 9th Schedule in its entirety. These insertions were

challenged before five judges Bench on the ground that portions, which were

struck down could not be validly inserted in 9th Schedule. By an order

passed on 14.9.1999 reported in (1999) 7 SCC 580 a Constitution Bench of

Supreme Court referred the matter to the larger bench of nine judges

observing that after 24th April, 1973 (the date when Kesavananda Bharti

judgment was delivered) the inclusion of the acts, which were struck down

by the Courts as violative of Part III of the Constitution of India in 9th

Schedule is beyond the constituent power of the Parliament since they

damage the basic or essential features of the Constitution or its basic

structure. The judgment in Waman Rao (1981) in view of Minerva Mills

(1980) and Maha Rao Sahib Sri Bhim Singh Ji (1981) was required to be

reconsidered by the larger Bench.

21. The Supreme Court framed the broader question to be decided by

nine judges:-

“The fundamental question is whether on and after 24 th April

1973 when basic structure doctrine was propounded, it is permissible for

the parliament under Art.31-B to immunise legislations from

fundamental rights by inserting them to the 9th Schedule, and if so, what

is the effect of the power of judicial review of the Court.”

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22. The Supreme Court then traced the law from the first amendment

(1951) inserting Art.31-A and 31-B and adding 9th Schedule to the

Constitution upheld in Shri Shankari Prasad Singh Deo Vs. Union of

India, 1952 SCR 89 and Sajjan Singh Vs. State of Rajasthan, (1965) 1

SCR 933 upholding 17th amendment (1964).

23. The majority of 13 judges in Kesavananda Bharti upheld 24th

amendment, declared 25th amendment to the extent that it took away the

power of judicial review, left 26th amendment to be determined by

Constitution Bench of five judges and upheld 29th amendment. The doctrine

of basic structure or framework was firmly established and that majority did

not accept the unlimited power of the Parliament to amend the Constitution

and held that Art.368 has implied limitations.

24. After promulgation of emergency in June 1975 the 39th Amendment

tried to do away by Art.329-A the judgment of the High Court of Allahabad

and added entries 87 to 124 in the 9th Schedule. Many of these were not

connected with land reforms. In Indira Nehru Gandhi Vs. Raj Narain (1975)

the amendments were struck down as violative of basic structure of

Constitution. Internal emergency was proclaimed two weeks before the

judgment and the fundamental rights were curtailed. 40th Amendment

inserted entries 125 to 128 in 9th Schedule and the 42nd Amendment Act

amended Art.368 and many other articles.

25. At the end of emergency 44th amendment (1978) tried to do away

with most of the amendments but omitted Art.19 (1) (f) and Art.30 (1). The

ADM Jabalpur was impliedly overruled by these amendments as MISA and

Prevention of Publication of Objectionable Matters Act, 1976 placed in 9 th

Schedule were repealed.

26. In Maneka Gandhi (1978) a seven judges Bench overruled A.K.

Gopalan (1950) after 28 years and held that procedure established under

Art.21 has to be reasonable and not violative of Art.14.

27. In Minerva Mills (1980) the Supreme Court struck down Clause 4

and 5 of Art.368 as violative of basic structure of the Constitution and then

came Waman Rao and Bhim Singh Ji challenging the validity of Urban Land

(Ceiling and Regulation) Act, 1976, which was inserted in 9th Schedule. The

Constitution Bench unanimously held Section 27 (1) prohibiting disposal of

property as violative of Art.14 and 19 (1) (f), which was later omitted in

1978.

28. The 9th Schedule contains 284 acts added by 11 constitutional

amendments from 1951 to 1995 and omissions of three acts.

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The contentions

29. F.S. Nariman submitted that it is impermissible to immunise the 9 th

Schedule from judicial review as it is violative of basic structure. The basic

structure test will include judicial review of 9 th Schedule on the touchstone of

fundamental rights. The constitutional validity has to be judged on the direct

impact and effect test, which means the impact and not the form of

amendment is relevant.

30. Per contra the respondents submitted that validity of 9 th Schedule can

only be tested on touchstone of basic structure doctrine and there was no

question of judicial review of such legislations on the ground of violation of

fundamental rights, which stand excluded by protective umbrella of Art.31-B

and therefore, the challenge can be based only on the ground of basic

structure doctrine and in addition (1) lack of legislation competence and (2)

violation of other constitutional provisions. It was contended that issues

covered by majority judgment in Keshvanand Bharati case.

The Reasoning

31. Relying upon Kesavananda Bharti's case the Court noticed Justice

Khanna's opinion that fundamental rights could be amended, abrogated or

abridged so long as the basic structure of the Constitution is not destroyed

and at the same time upholding 29th amendment as valid, it was noticed that

in Indira Gandhi's case Justice Khanna clarified his opinion, which tilted the

balance in Kesavananda Bharti's case in which six learned judges were on

either side in 13 judges Justice Khanna gave the casting opinion, the

Supreme Court found that in Indira Gandhi Vs. Raj Narain Justice Khanna

clarified his observations and said: “what has been laid down in the judgment

is that no article of the Constitution is immune from the amendatory process

because of the fact that it relates to fundamental right and is contained in Part

III of the Constitution. The above observations clearly militate against the

contentions that according to my judgment fundamental rights are not part of

basic structure of the Constitution. I also dealt with the matter at length to

show that the right to property was not a part of basic structure of the

Constitution. This would have been wholly unnecessary if none of the

fundamental right was a part of the basic structure of the Constitution.”

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32. The acts put in 9th Schedule do not become part of the Constitution

by such inclusion as no State legislature has power to repeal or amend the

Constitution.

33. In Waman Rao Justice Chandrachud and in Minerva Mills justice

Bhagwati did not consider the binding effect of majority judgment in

Kesavananda Bharti case. They only examined the effect, impact and

working of the doctrine of basic structure in Kesavananda Bharti case. All

these judgments show that violation in individual case has to be examined to

find out whether violation of equality amounts to destruction of basic

structure of the Constitution.

34. Justice Khanna did not elevate the right of property to the level and

status of basic structure or basic framework of the Constitution. He has

resolved the doubts in his opinion in Indira Gandhi case.

35. The amending power inserting laws into 9th schedule does not entail

complete removal of fundamental right chapter. 9 th Schedule is not

controlled by any designed criteria or standards by which the exercise of

power may be evaluated. There is no constitutional control on such

nullification. If the doctrine of basic structure provides a touchstone to test

the amending power or its exercise, there can be no doubt and it has to be

accepted that Part III of the constitution has key role to play in the

application of the doctrine.

36. The responsibility to adjudge the constitutionality of all the laws is

that of the judiciary. Art.32 is part of Part III. The inclusion of an act in 9 th

Schedule does not exclude the check of Part III including that of Art.32.

The unchecked and rampant exercise of powers by including acts in 9 th

Schedule, the number of which has gone up from 13 to 284 shows that it is

no longer a mere exception. The absence of guidelines for exercising such

power means absence of constitutional control, which result in destruction of

constitutional supremacy and creation of parliamentary hazimony.

37. The Parliament can amend the provisions of Part III subject to

limitation of basic structure doctrine. Since full judicial review is also

integral part of the constitutional scheme, the essence of the principles

behind Art.14, 19 and 21 are also part of basic structure.

Once Art.32 is triggered, the legislation must answer a complete test of

fundamental right. Every insertion into 9th Schedule does not restrict Part III

review. For these reasons every addition to 9th Schedule triggers Art.32,

as part of basic structure and is consequently subject to the review of the

fundamental rights as they stand in Part III.

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38. Equity, rule of law, judicial review and separation of powers form

parts of basic structure of the Constitution. Each of these concepts are

intimately connected. There can be no rule of law, if there is no equality

before law.

39. In Waman Rao case the Court examined whether the device of

Art.31-B could be used to immunise 9th Schedule laws from judicial review

by making the entire Part III inapplicable to such laws and whether such a

power was incompatible with basic structure doctrine. The answer was in

affirmative. It was said that such powers are likely to make controlled

Constitution uncontrolled. It will render doctrine of basic structure

redundant and will remove the golden triangle of Art.21 read with Art.14 and

19, in its entirely for examining the validity of 9 th Schedule laws, as it makes

the entire Part III inapplicable, at the will of the Parliament.

40. The 'essence of right test' is different from rights test. The argument

that Part III is eliminated is incompatible with the implied limitation of

power on Parliament.

41. First the violation of rights of Part III is required to be

determined, then its impact examined, and if it shows that in effect and

substance, it destroys the basic structure of the Constitution, the

consequence of invalidation has to follow. The golden triangle of Art.14,

19 and 21 is basic feature of the Constitution as it stands for equity and rule

of law.

The Conclusion

42. The Supreme Court held:-

“A law that abrogates or abridges rights guaranteed by Part III of the Constitution may violate the basic structure doctrine or it may not. If former is the consequence of law, whether by amendment of any Article of Part III or by an insertion in the Ninth Schedule, such law will have to be invalidated in exercise of judicial review power of the Court. The validity or invalidity would be tested on the principles laid down in this judgment.

The majority judgment in Keshavananda Bharati's case read with Indira Gandhi's case, requires the validity of each new constitutional amendment to be judged on its own merits. The actual effect and impact of the law on the rights guaranteed under Part III has to be taken into account for determining whether or not it destroys basic structure. The impact test would determine the validity of the challenge.

All amendments to the Constitution made on or after 24 th

April, 1973 by which the Ninth Schedule is amended by inclusion of various laws therein shall have to be tested on the touchstone of the basic or essential features of the Constitution as reflected in Article 21 read with Article 14, Article 19, and the principles underlying

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them. To put it differently even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.

Justification for conferring protection, not blanket protection, on the laws included in the Ninth Schedule by Constitutional Amendments shall be a matter of Constitutional adjudication by examining the nature and extent of infraction of a Fundamental Right by a statute, sought to be Constitutionally protected, and on the touchstone of the basic structure doctrine as reflected in Article 21 read with Article 14 and Article 19 by application of the “rights test” and the “essence of the right” test taking the synoptic view of the Articles in Part III as held in Indira Gandhi's case. Applying the above tests to the Ninth Schedule laws, if the infraction affects the basic structure then such a law(s) will not get the protection of the Ninth Schedule.”

43. The Supreme Court held that if the validity of any 9th Schedule

law has already been upheld by this Court, it would not be open to

challenge such law again on the principles declared by this judgment.

However, if a law is held to be violative of any rights in Part III is

subsequently incorporated in the Ninth Schedule after 24th April, 1973,

such a violation/ infraction shall be open to challenge on the ground that

it destroys or damages the basic structure as indicated in Article 21 read

with Article 14, Article 19 and the principles underlying thereunder.

44. The Supreme Court further held that the actions taken and

transactions finalized as a result of the impugned Acts shall not be open to

challenge, and directed that the petitions/ appeals be placed for hearing

before a Three Judges Bench.

The Features

45. The nine judges deciding the issue of validity of laws put by

constitutional amendment in 9th Schedule, has discussed many important

cases in the judgment namely (1) Shri Shankari Prasad Singh Deo Vs. Union

of India and State of Bihar (1952) SCR 89; (2) Sajjan Singh Vs. State of

Rajasthan, (1965) 1 SCR 933; (3) I.C. Golak Nath Vs. State of Punjab,

(1967) 2 SCR 762; (4) His Holiness Kesavananda Bharti Sri Pada Galvaru

Vs. State of Kerala, (1973) 4 SCC 225; (5) Waman Rao Vs. Union of India,

(1981) 2 SCC 362; (6) Minerva Mills Ltd. Vs. Union of India, (1980) 3 SCC

625; (7) Maha Rao Sahib Shri Bhim Singh Ji Vs. Union of India, (1981) 1

SCC 166; (8) Smt. Indira Nehru Gandhi Vs. Raj Narain, (1975) Supp. 1

SCC 1; and (9) L. Chandra Kumar Vs. Union of India, (1997) 3 SCC 261.

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46. The Supreme Court relied upon Dr. Amartya Sen, Lord Steyn, and

Granville Austin in holding primacy of fundamental rights not on the

assumption that they are higher rights but that their protection is the best way

to promote a just and tolerant society and the right of judiciary to protect

constitutionalism and further to declare that Art.14, 19 and 21 represent the

foundational values, which form the basis of rule of law. These are

principles of constitutionality, which form the basis of judicial review apart

from the rule of law and separation of powers. Anything that destroys the

balance will ipso facto destroy the essential elements of the basic structure of

the Constitution.

47. The Court also relied upon James Madison, Federalist 47, 48 and 51

in which he discusses Montesquieu's treatment of the separation of powers in

the spirit of laws (Book XI, Ch.6) in which he writes that when the

legislative and executive powers are united in the same person, or in the

same body of magistrates, there can be no liberty. Again there is no liberty,

if judicial power be not separated from legislative and executive.

Montesquieu finds tyranny pervades where there is no separation of powers

and Supreme Court found that separation of powers is part of basic structure

of the Constitution.

48. The judgment is not in the adversial form in which the counsels

raised arguments and the Court decided issues. It is rather a judgment of

affirmation of the right of judicial review as the basic feature of the

Constitution and to do away with the fictional immunity given by Art.31-B to

the laws put in the well of the 9 th Schedule. The judgment seeks to lay down

the supremacy of the judicial review of the laws by Courts and none else and

separation of powers and to guard the fundamental rights.

49. It may be argued that in 2007 there is no threat to the private

property rights as the country has shifted its stand from socialism to neo

capitalism and that the goals have shifted from equal distribution of wealth to

accumulation of wealth by the nation through the individuals, organisations

and corporations, for economic growth without compromising with

socialistic pattern of society. With weak governments at the centre there is

no real or apparent threat abrogating the fundamental rights by constitutional

amendments. The judgment infact comes by way of affirming of the judicial

powers of review of all the laws on the touchstone of rights guaranteed in

Part III and thereafter basic structured doctrine.

50. The unanimity of the judgment is a unique feature. So far all the

cited judgments were delivered with divided opinions. It may be argued that

14

since the law is fairly settled, there was no cause for division of opinion. But

for the scholars of law the unanimity of opinion amongst judges even to

establish law, is an encouraging feature of the strength of judiciary.

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References:-(1) Kameshwar Vs. State of Bihar, AIR 1951 Patna 91,(2) Shankari Prasad Singh Deo Vs. State of Bihar, 1952 SCR 89(3) Kochunni Vs. State of Madras, AIR 1960 SC 1080,(4) Sajjan Singh Vs. State of Rajasthan, (1965) 1 SCR 933,(5) I.C. Golak Nath & Ors. Vs. State of Punjab, (1967) 2 SCR 762,(6) Balmadies Plantations Ltd. & Anr. Vs. State of Tamil Nadu, (1972) 2 SCC 133,(7) His Holiness Kesavananda Bharati, Sripadagalvaru Vs. State of Kerala & Anr.,

(1973) 4 SCC 225,(8) Smt. Indira Nehru Gandhi Vs. Raj Narain, 1975 Supp. (1) SCC 1,(9) Menaka Gandhi Vs. Union of India, (1978) 1 SCC 248,(10) Minerva Mills Ltd. Vs. Union of India, (1980) 3 SCC 625,(11) Waman Rao & Ors. Vs. Union of India, (1981) 2 SCC 362,(12) Maharao Sahib Shri Bhim Singhji Vs. Union of India & Ors., (1981) 1 SCC 166,(13) L. Chandra Kumar Vs. Union of India, (1997) 3 SCC 261,(14) I.R. Coelho (Dead) by Lrs. Vs. State of Tamil Nadu & Ors., (1999) 7 SCC 580, and(15) M. Nagaraj & Ors. Vs. Union of India & Ors., (2006) 8 SCC 212.

References:-(1) Kameshwar Vs. State of Bihar, AIR 1951 Patna 91,

(2) Shankari Prasad Singh Deo Vs. State of Bihar, 1952 SCR 89

(3) Kochunni Vs. State of Madras, AIR 1960 SC 1080,

(4) Sajjan Singh Vs. State of Rajasthan, (1965) 1 SCR 933,

(5) I.C. Golak Nath & Ors. Vs. State of Punjab, (1967) 2 SCR 762,

(6) Balmadies Plantations Ltd. & Anr. Vs. State of Tamil Nadu,

(1972) 2 SCC 133,

(7) His Holiness Kesavananda Bharati, Sripadagalvaru Vs. State of

Kerala & Anr., (1973) 4 SCC 225,

(8) Smt. Indira Nehru Gandhi Vs. Raj Narain, 1975 Supp. (1) SCC 1,

(9) Menaka Gandhi Vs. Union of India, (1978) 1 SCC 248,

(10)Waman Rao & Ors. Vs. Union of India, (1981) 2 SCC 362,

(11)Minerva Mills Ltd. Vs. Union of India, (1980) 3 SCC 625,

(12)Maharao Sahib Shri Bhim Singhji Vs. Union of India & Ors.,

(1981) 1 SCC 166,

(13)L. Chandra Kumar Vs. Union of India, (1997) 3 SCC 261,

(14)I.R. Coelho (Dead) by Lrs. Vs. State of Tamil Nadu & Ors.,

(1999) 7 SCC 580, and

(15)M. Nagaraj & Ors. Vs. Union of India & Ors., (2006) 8 SCC

212.

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